Where, however, the indictment states the woman to be the wife of the person with whom she is jointly indicted, no evidence is necessary to show that she is the wife. (z)

Ignorance.1 — IV. Upon the plea or excuse of ignorance, it may be shortly observed, that it will apply only to ignorance or mistake of fact, and not to any error in point of law. For ignorance of the municipal law of the kingdom is not allowed to excuse any one that is of the age of discretion and compos mentis from its penalties when broken. (a) And it is no defence for a foreigner charged with a crime committed in England, that he did not know he was doing wrong, the act not being an offence in his own country. (b) Where, therefore, two Frenchmen were committed on a charge of murder in a duel, and alleged that they were ignorant of the law of England, and believed that acting as seconds in a fair duel was not punishable here, as it was not punishable in France, and that this was a fair duel, it was held that they were precisely in the same position as if they were native subjects of England, and the Court refused to bail them. (c) And as a ship, public or private, on the high seas, is, for the purpose of jurisdiction over crimes committed therein, a part of the territory to which the ship belongs, a person voluntarily coming on board an English ship, is as much amenable to the criminal law of England as if he came voluntarily into an English county, and ignorance of the law is no more an excuse in the one case than in the other. (d) But in some instances an ignorance or mistake of the fact will excuse; which appears to have been ruled in cases of misfortune and casualty; as if a man, intending to kill a thief or housebreaker in his own house, by mistake kills one of his own family, this will not be a criminal action. (e)

It is a principle of natural justice and of our law, that actus non facit reum, nisi mens sit rea. This maxim was much discussed in the recent case of R. v. Prince, 44 L. J. M. C. 122, noticed post, in this vol. As to statutes binding aliens, see the Year Book, 13 Ed. 4, p. 9, pl. 5.

she considered to be cast upon her, the Court would have felt it right to have inflicted a very slight punishment upon her.' As in every case, except bigamy and criminal conversation, living together as man and wife is sufficient evidence of a marriage, Morris v. Miller, 1 Bl. R. 632; (Woodgate v. Potts, 2 C. & K. 457), there seems to have been abundant evidence in this case of a marriage between the parties; but, assuming that not to be so, it is deserving of consideration whether, if a woman received and comforted a felon, honestly believing him to be her husband, that would not entitle her to an acquittal, upon the ground that no guilty intention could exist under such circumstances, but, on the contrary, she was doing that which she honestly believed to be her duty to do. C. S. G.

(2) R. v. Knight, 1 C. & P. 116. J. A. Park, J.

(a) 1 Hale, 42. 4 Blac. Com. 27, ignorentio juris, quod quisque tenetur scire, neminem excusat, is a maxim as well of our own law as it was of the Roman. Plowd. 343. Ff. 22, 6, 9.

(b) R. v. Esop, 7 C. & P. 456. Bosanquet and Vaughan, JJ.

(c) Barronet's case, 1 E. & B. 1. 1 Dears. C. C. R. 51. This is in accordance with the Mosaic Law: Ye shall have one manner of law as well for the stranger as for one of your own country.' (Levit. xxiv. 22; Exod. xii 49.)

(d) R. v. Sattler, R. v. Lopez, D. & B. C. C. 525.

(e) Levett's case, Cro. Car. 538. See this case post. 4 Blac. Com. 27. 1 Hale, 42, 43.

AMERICAN NOTE.

1 In America it has been laid down that the essence of an offence is the intention to commit it. See Duncan v. S., 6 Humph.

148; Tardiff v. S., 23 Texas, 169; Winehart v. S., 6 Ind. 30.

CHAPTER THE THIRD.

OF PRINCIPALS AND ACCESSORIES.

WHERE two or more are to be brought to justice for one and the same felony, they are considered in the light either-I. Of principals in the first degree. II. Principals in the second degree. III. Accessories before the fact; or IV. Accessories after the fact. And in either of these characters they will be felons in consideration of law; for he who takes any part in a felony, whether it be a felony at common law or by statute, is in construction of law a felon, according to the share which he takes in the crime. (a)

Principals in the first degree.-I. Principals in the first degree are those who have actually and with their own hands committed the fact; and it does not appear necessary to say anything in this place by way of explanation of the nature of their guilt, which will be detailed in treating of the different offences in the course of the work.

Principals in the second degree.1 II. Principals in the second degree are those who were present, aiding and abetting at the commission of the fact. They are generally termed aiders and abettors, and sometimes accomplices: but the latter appellation will not serve as a term of definition, as it includes all the participes criminis, whether they are considered in strict legal propriety as principals in the first or second degree, or merely as accessories before or after the fact. (b) The distinction between principals in the first, and principals in the second degree; or, to speak more properly, the course and order of proceeding against offenders founded upon that distinction, appears to have been unknown to the most ancient writers on our law, who considered the persons present aiding and abetting in no other light than as accessories at the fact. (c) But as such accessories they were not liable to be brought to trial till the principal offenders should be convicted or outlawed; a rule productive of much mischief, as the course of justice was frequently arrested by the death or escape of the principal, or from his remaining unknown or concealed. And with a view to obviate this mischief the judges by degrees adopted a different rule: and at length it became settled law that all those

who are present, aiding and abetting, when a felony is committed, are principals in the second degree. (d)

In order to render a person a principal in the second degree, or an aider and abettor, he must be present aiding and abetting at the fact, or ready to afford assistance if necessary; but the presence need not be a strict actual immediate presence, such a presence as would make him an eye or ear witness of what passes, but may be a constructive presence. So that if several persons set out together, or in small parties, upon one common design, be it murder or other felony, or for any other purpose unlawful in itself, and each takes the part assigned him; some to commit the fact, others to watch at proper distances and stations to prevent a surprise, or to favour, if need be, the escape of those who are more immediately engaged; they are all, provided the fact be committed, in the eye of the law present at it; for it was made a common cause with them; each man operated in his station at one and the same instant, towards the same common end, and the part each man took tended to give countenance, encouragement and protection to the whole gang, and to insure the success of their common enterprise. (e) But there must be some participation; therefore if a special verdict against a man as a principal does not show that he did the act, or was present when it was done, or did some act at the time in aid which shows that he was present, aiding and assisting, or that he was of the same party, in the same pursuit, and under the same expectation of mutual defence and support with those who did the fact, the prisoner cannot be convicted. (f) So, if several are out for the purpose of committing a felony, and upon alarm and pursuit run different ways, and one of them maim a pursuer to avoid being taken, the others are not to be considered as principals in that maiming. (g) And it is not sufficient to make a man a principal in uttering a forged note, that he came with the utterer to the town where it was uttered, went out with him from the inn where they put up a little before he uttered it, joined him again in the street a short time after the uttering, and at a little distance from the place of uttering, and ran away when the utterer was apprehended. (h) The general rule applies to offences by statute as well as at common law, viz., that all present at the time of committing an offence are principals, although one only acts, if they are confederates, and engaged in a common design, of which the offence is part. (2) And it has been considered, in a case where three persons were charged with uttering a forged note, that other acts done by all of them jointly, or by any of them separately, shortly before the offence, may be given in evidence to show the confederacy and common purpose, although such

(d) Coal-heaver's case. 1 Leach, 66. And see Fost. 428, and R. v. Towle, Russ. & Ry. 314. This law was by no means settled till after the time of Ed. 3; and so late as the first of Queen Mary a chief justice of England strongly doubted of it, though indeed it had been sufficiently settled before that time.

(e) Fost. 350, 2 Hawk. P. C. c. 29, ss. 7, 8; see R. v. Howell, 9 C. & P. 437; Littledale, J.; R. v. Vanderstein, 10 Cox, C. C. (Irish) 177.

(f) R. v. Borthwick, Dougl. 207. (g) R. v. White & Richardson, R. & R. 99.

(h) R. v. Davis & Hall, East. T. 1806. MS. Bayley, J.; and R. & R. 113. See per Graham, B., in the case of Brady and others, O. B. June, 1813, 1 Stark. Crim. Plead. 80, in the note.

(i) R. v. Tattersal, Sedgewick & Hodgson, East. T. 1801. MS. Bayley, J.

acts constitute distinct felonies. () And also that what was found upon each may be proved against each to make out such confederacy, although it were not found until some interval after the commission of the offence. (k)

Kelly and McCarthy were indicted for stealing oats, and it appeared that Kelly was hired by the prosecutor to draw oats in sacks from a vessel to the prosecutor's warehouse, and McCarthy was employed by the prosecutor to load the sacks out of the vessel into the trams on which they were carried. The trams belonged to Kelly. Whilst one load was being conveyed to the warehouse, Kelly said to McCarthy, 'It's all right,' and shortly afterwards McCarthy emptied some oats out of two sacks which were on a tram close to the vessel, into a nosebag which he then placed under the tram. Kelly, at this time, was absent with a load, but returned in a few minutes to the vessel with an empty tram, took the nosebag from under the tram, where McCarthy had placed it, and put it on the tram, and drove off with it, McCarthy being, at the time Kelly took the nosebag from under the tram, on the vessel, which lay close to the tram, and within three or four yards of Kelly. It was submitted that Kelly was entitled to be acquitted, as he was not present at the time when the oats were stolen. Maule, J.: 'I think the evidence shows that this was all one transaction, in which both concurred; and I think both having concurred, and both being present at some parts of the transaction, both may be convicted.' ()

Upon an indictment for larceny against Hornby and W. G., it appeared that W. G. was the foreman of the prosecutor, a canvas manufacturer, but had no authority to sell any yarn. On one occasion Hornby sent his servants to the warehouse of the prosecutor to bring away yarn, and W. G. delivered with the yarn an invoice made out in the name of the prosecutor. Subsequently, Hornby sent two of his men to the warehouse of the prosecutor, and, on arriving, they found Hornby and W. G. there. Some yarn was pointed out as the yarn which they were to take to Hornby's premises: and they thereupon, in the presence of Hornby and W. G., carried away the yarn in question. When Hornby was charged he produced the invoice which W. G. gave him on the first occasion, and stated that, except on that occasion, he had had no dealings with him. It was submitted that Hornby was only guilty of receiving the yarn, knowing it to have been stolen, but Coltman, J., held that if Hornby knew that in the transaction in question W. G. was, in fact, committing a felony, he, as well as W. G., was guilty of the same felony; and, therefore, the question for the jury was whether, at the time of the pretended sale by W. G., Hornby knew that W. G. was exceeding his authority and defrauding his master. (m)

Going towards the place where a felony is to be committed in order to assist in carrying off the property, and assisting accordingly, will not make the party a principal if he was at such a distance, at the time of the felonious taking, as not to be able to assist in it. The

(j) Id. ibid.

(k) Id. ibid.

(4) R. v. Kelly, 2 C. & K. 379. Maule,

J., refused to reserve the point, and the prisoners were convicted.

(m) R. v. Hornby, 1 C. & K. 305.

prisoner and J. S. went to steal two horses; J. S. left the prisoner half a mile from the place in which the horses were, and brought the horses to him, and both rode away with them. Upon a case reserved, the judges thought the prisoner an accessory only, not a principal, because he was not present at the original taking. (n) So, where a servant let a person into his master's house, in order that he might steal his master's money, and he continued in the house till the robbery, but the servant left the house before the robbery was committed, it was held that the servant was an accessory before the fact. (o) So, where on an indictment for stealing in a dwelling-house, it was proved that a servant had unlocked the door of the house, in order that another person might get in and steal the property, which he did about twenty minutes after the servant had left the house, it was contended. that, as it was clear that if the servant had been indicted for housebreaking and stealing he might have been convicted, (p) that showed that he was guilty of stealing the money, for that could not depend upon the form of the indictment. But it was held that the servant was only an accessory before the fact to the offence charged in this indictment. (9) So, where three prisoners were jointly indicted for maliciously wounding with intent to maim, &c., and one of them did not come up and take any part until the wound had been inflicted by the others, it was held that the latter only could be convicted, though the former kicked the prosecutor several times after he came up. (r) So, if two prisoners go to a house, intending to commit a theft in it, and one enters first and is apprehended, and then the other enters and commits the theft, the former is only an accessory before the fact. (s)

But where a man committed a larceny, in a room of a house, in which room he lodged, and threw a bundle containing the stolen property out of the window to an accomplice who was waiting to receive it, the judges came to a different conclusion. The accomplice was indicted and convicted as a receiver; and the learned judge before whom he was tried was of opinion, that as the thief stole the property in his own room, and required no assistance to commit the felony, the conviction of the accomplice as a receiver might have been supported, if the jury had found that the thief had brought the goods out of the house, and delivered them to the accomplice; but as the jury had found that the thief threw the things out of the window, and that the accomplice was in waiting to receive them, he thought the point fit for consideration. And the judges were of opinion that the accomplice in this case was a principal, and that the conviction of him as a receiver was wrong. (t)

(n) R. v. Kelly, MS. Bayley, J., and may possibly be supported on the ground R. & R. 421. that the servant had left the house twenty minutes before the thief came.1

(0) R. v. Tuck well, C. & M.215. Coleridge, J. It is not stated how long before the theft the servant left.

(p) R. v. Jordan, 7 C. & P. 432. (q) R. v. Jefferies & Bryant, Gloucester Spr. Ass. 1848. Cresswell and Patteson, JJ. MSS. C. S. G. 3 Cox, C. C. 85. This case

(r) R. v. M'Shane, C. & M. 212. Tindal, C. J.

(s) R. v. Johnson, C. & M. 218. Maule, J., and Rolfe, B.

(t) R. v. Owen, R. & Mood. C. C. R. 96. R. v. Coggins, 12 Cox, C. C. 517.

AMERICAN NOTE.

1 See Bishop, i. s. 650, note (1), and s. 676 (3).